The media and the law

The Australian's Chris Merrit has had a good week reporting on Chief Justice Marilyn Warren's Richard Searby oration. By my count, there have been at least three separate reports and the oration has prompted one editorial in the Australian. The Sydney Morning Herald and the Age have also gotten in on the act, publishing edited extracts of the speech and on Friday the Herald Sun joined the chorus.

Though while scorekeeping can be an interesting game in itself, the more interesting part concerns the particular responses of the media.

Electronic media
As part of her speech, Warren CJ mooted the idea of courts being more proactive about distributing information about judgments, including greater provision of information online, a weekly newsletter and possibly a retired judge on youtube explaining judgments.

In an article on Thursday, Merrit comments on general policy against allowing film and video recording in courtrooms, which states that it should only be granted in exceptional cases. He continues:

This is in line with practice in other states, where the electronic media, unlike the print media, has no right of access to open courts.

Now, its important to keep terminology straight. The 'electronic media' is a very vague term, but I'd say that it does not generally include film and television. Instead, it includes on-line based reporters, blog authors, and twitter users. Twitter especially is becoming a valuable tool in the speedy reporting and discussion of cases, as was seen in relation to the Momcilovic special leave application recently, and last year in the iiNet litigation.

On the subject of blogs, I think its fair to say that legal blogging in Australia is still in its infancy. We don't have an equivalent of SCOTUSBlog, or UKSCblog. There are also very few (as far as I can tell) general legal blogs. But the blog environment, which operates outside the demands of the mainstream media, can provide a valuable chance to discuss, consider and pick apart topical cases. Like any amateur endeavour, it has its limits, but it can be a valuable part of the electronic media that is involved in reporting cases.

Don't blame the media!?
On Friday, Merrit followed the lead of his editors from earlier in the week, rejecting criticisms of the media for the reporting of  In his view, its the impenetrable language and reasoning of the judges that are to blame, and the poor media has little chance of understanding the reasoning. He implies that it is therefore perfectly reasonable to look at the result, look superficially at the facts, and say that something is fishy.

In her speech, Warren CJ identified three reasons why judges don't go on the public record defending their decisions. First, they must remain objective and uninfluenced by matters outside the courtroom. Second, they must be seen to be independent, and third, the quality of reasons is tested by appellate courts, not the so-called court of public opinion. To this, I'd add a fourth and vital explanation - Because they already have defended their decision. That's what the reasons are, and it does little good for the media to say 'we don't understand the reasons, but we intuitively disagree with the result, therefore it must be wrong'.

As Warren CJ says, judges write for three audiences - The courts, especially the appellate courts; the parties; and the public. And in striving for legal accuracy, sometimes they will lose the clarity needed to engage with the public. But if the media are going to report on decisions in a way calculated to generate a public debate, they owe it to the judges and the public to make an effort to lead to an informed public debate. Otherwise the merits of a decision will remain the province of appellate courts, legal journals and specialist blogs, and the public debate will be poorer for it.

The solution
Legal reporting in Australia is still a very narrow field. Chris Merrit and Michael Pelly of the Australian and Geoff Wilkinson of the Herald Sun do a reasonable job, but I'm not confident that they are really able to frame the legal issues of the day in a way that contributes to community understanding and debate. Legal discourse in America seems more sophisticated, with the likes of Dahlia Lithwick on Slate attempting to contribute to informed debate. While her biases colour her reporting, my view is that she at least attempts to identify the legal issues and reasons, rather than jumping to an emotional and emotive conclusion following a superficial reading of the facts.